R was the victim of a violent, abusive and controlling husband. She believed that he would cause her and their daughter serious bodily harm or death and that she had no safe avenue of escape other than having him killed. She spoke to an undercover RCMP officer posing as a hit man and agreed to pay him $25,000 to kill her husband. She gave $2,000, an address and a picture of her husband to the officer. She was arrested and charged with counselling the commission of an offence not committed contrary to s. 464(a) of the Criminal Code. The trial judge was satisfied beyond a reasonable doubt that the requisite elements of the offence were established. The only issue at trial was whether the defence of duress applied. The trial judge accepted R’s evidence that the sole reason for her actions was intense and reasonable fear arising from her husband’s threats of death and serious bodily harm to herself and their daughter. The trial judge found that the common law defence of duress applied and acquitted R. On appeal, for the first time, the Crown argued that duress was not available to R in law. The Court of Appeal upheld the acquittal. The Supreme Court of Canada held the appeal is allowed, but stayed the proceedings. The Court said:

“This appeal raises a novel question: may a wife, whose life is threatened by her abusive husband, rely on the defence of duress when she tries to have him murdered? The Nova Scotia courts concluded that she may and acquitted the respondent, Nicole Ryan, of counselling the commission of her husband’s murder. The Crown appeals.

As we see it, the defence of duress is available when a person commits an offence while under compulsion of a threat made for the purpose of compelling him or her to commit it. That was not Ms. Ryan’s situation. She wanted her husband dead because he was threatening to kill her and her daughter, not because she was being threatened for the purpose of compelling her to have him killed. That being the case, the defence of duress was not available to her, no matter how compelling her situation was viewed in a broader perspective. It is also our view, however, that the uncertainty surrounding the law of duress coupled with the Crown’s change of position between trial and appeal created unfairness to Ms. Ryan’s defence in this case. As a result, we would allow the appeal and enter a stay of proceedings.

…

The Court of Appeal’s conclusion stands for the proposition that courts must take into account the accused’s voluntary assumption of risk, a natural corollary of the unavailability of the defence of duress to those who wilfully engage in criminal conspiracies or organizations. This is consistent with the principle of moral involuntariness. An accused that, because of his or her criminal involvement, knew coercion or threats were a possibility cannot claim that there was no safe avenue of escape, nor can he or she truly be found to have committed the resulting offence in a morally involuntary manner.

Therefore, to rely on the common law defence of duress, the accused must not be a party to a conspiracy or association whereby he or she is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.

…

We think that the subjective standard is more in line with the principle of moral involuntariness. If the accused voluntarily puts him or herself in a position where he or she could be coerced, then we cannot conclude that there was no safe avenue of escape and that the ensuing actions were morally involuntary.

The defence of duress, in its statutory and common law forms, is largely the same. The two forms share the following common elements:

• There must be an explicit or implicit threat of present or future death or bodily harm. This threat can be directed at the accused or a third party.

• The accused must reasonably believe that the threat will be carried out.

• There is no safe avenue of escape. This element is evaluated on a modified objective standard.

• A close temporal connection between the threat and the harm threatened.

• Proportionality between the harm threatened and the harm inflicted by the accused. The harm caused by the accused must be equal to or no greater than the harm threatened. This is also evaluated on a modified objective standard.

• The accused is not a party to a conspiracy or association whereby the accused is subject to compulsion and actually knew that threats and coercion to commit an offence were a possible result of this criminal activity, conspiracy or association.

Certain differences remain.

The first is that . . . the statutory defence applies to principals, while the common law defence is available to parties to an offence. The second is that the statutory version of the defence has a lengthy list of exclusions, whereas it is unclear in the Canadian common law of duress whether any offences are excluded. This results in the rather incoherent situation that principals who commit one of the enumerated offences cannot rely on the defence of duress while parties to those same offences, however, can.

This is an unsatisfactory state of the law, but one which we think we are not able to confront in this case. Although we had the benefit of extensive argument about the parameters of the common law and statutory defences of duress, understandably no argument was presented about the statutory exclusions. In addition, some courts have found some of these exclusions to be constitutionally infirm. We accordingly leave to another day the questions of the status of the statutory exclusions and what, if any, exclusions apply at common law."

Note: This summary is drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.